Federal Court Says Ballot Selfie Ban Is Like Burning Down the House to Roast a Pig

In a victory for the First Amendment, a federal appeals court unanimously struck down New Hampshire’s law banning “ballot selfies.”

In a thoughtful 22-page opinion issued Wednesday, the First Circuit Court of Appeals unequivocally concluded that the law violates free speech rights:

“The restriction affects voters who are engaged in core political speech, an area highly protected by the First Amendment . … Ballot selfies have taken on a special communicative value: they both express support for a candidate and communicate that the voter has in fact given his or her vote to that candidate. …

“New Hampshire may not impose such a broad restriction on speech banning ballot selfies in order to combat an unsubstantiated and hypothetical danger. We repeat the old adage: ‘a picture is worth a thousand words.’”

The law, which went into effect in September 2014, banned a person from displaying a photograph of a completed ballot, including on the internet through social media platforms like Twitter, Facebook, and Instagram. Engaging in this form of political speech was a violation-level offense punishable by a fine of up to $1,000.

The New Hampshire Legislature’s idea was to prevent illegal vote buying and voter coercion. But rather than limiting the law’s reach to online displays of marked ballots linked to these illegal schemes, the law banned innocent displays on social media as well — a form of speech which is almost always political in nature.

So the ACLU of New Hampshire brought a lawsuit challenging the law on behalf of three New Hampshire voters, including a member of the New Hampshire House of Representatives.

One of the other people we represented was Andrew Langlois. He was frustrated with the candidate choices during the 2014 primaries, so he wrote in the name of his dog, Akira, who had recently passed away. He also took a picture of the ballot with his phone, and later posted it on Facebook. A few weeks later, he got a call from the New Hampshire Attorney General’s Office, which told him that he was under investigation for breaking the ballot selfie law.

We won in the district court, and the state appealed, leading Snapchat, the Reporters Committee for Freedom of the Press, and others to file friend-of-the-court briefs supporting our position.

The appeals court found that the law was vastly overbroad:

“At least two different reasons show that New Hampshire has not attempted to tailor its solution to the potential problem it perceives. First, the prohibition on ballot selfies reaches and curtails the speech rights of all voters, not just those motivated to cast a particular vote for illegal reasons . … Second, the State has not demonstrated that other state and federal laws prohibiting vote corruption are not already adequate to the justifications it has identified.”

In short, the court concluded — quoting a 1957 Supreme Court opinion — “The ballot-selfie prohibition is like ‘burn[ing down] the house to roast the pig.’”

Indeed, the First Amendment doesn’t allow the government to broadly ban innocent political speech with the hope that such a sweeping ban will address underlying criminal conduct. The best way to combat vote buying and voter coercion is to investigate and prosecute cases of vote buying and coercion.

The ballot selfie ban is one of many laws passed that restrict how everyday citizens can use the internet. These measures have included attempts to create new decency restrictions for online content, to limit minors’ access to information on the internet, or to allow the unmasking of anonymous speakers without careful court scrutiny.

Though well intentioned, the laws often violate free speech rights. We will keep fighting to ensure the government respects the First Amendment online.

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Todd Gillette

As a long time and ardent supporter of the ACLU, I think you've got it very wrong this time. This is a case in which there is an actual slippery slope in which coercion can happen very easily on a small or large scale, and having not had this take place before it is extremely unclear how such coercion would be detected and handled. I would in fact be more concerned about the small scale coercion of a family member or employer.

Meanwhile, the political speech being referenced is hardly affected by not being able to show a picture of one's ballot. One can easily create a fake ballot, or simply describe their vote. While some emotional impact *may* be lost by not showing the true ballot, it is a very small trade-off for ensuring the secret vote.

Rob Starling

I think I agree with Todd. At the very least, this article should better indicate that the ACLU understands the argument about the potential for vote-buying. If they don't think it's a valid fear (like those related to Voter IDs), then say so, but this post sounds like they don't get it.

September 30, 2016

3:11 PM

Danny Sotelo

Yeah, great, next time I see a great view of a sunset, instead of taking a picutre I'll just post a lengthy description of it instead.

"One can easily create a fake ballot" lol

Also, this does affect my political speech. I can't take a picture of my ballot. I can't show, without a doubt, that I voted how I said I did. How else can I? (Also it makes absolutely no sense to punish those who took a picture of their ballot in cases of coercion. Why should they be fined for trying to avoid retaliation? The law needs to deal with that on a case by case basis and punish those who sought to force their choices on others, not someone who needs to avoid undue punishment).

October 1, 2016

4:32 AM

Anonymous

Does this only effect the New Hampshire Law, or all places that ban photos in polling places? And if so, what is the proper method to handle it when I arrive at t polling location that has signs up stating no photos allowed and have confirmed the rule with county board of elections

Ian Bloom

Voters should be UNABLE to prove how they voted. Banning cameras will not work. A well recognized solution is to require that voting systems utilize ballot secrecy controls that enable 'Incoercibility'. The simplest way to do this is to require the voter to leave the voting booth before executing the final step of recording a vote.

Anonymous

If you had to leave the booth before recording the vote, you would not be able to make sure your vote was placed correctly. Or is this what you are hoping for?

December 12, 2016

5:36 PM

Anonymous

When there are no exit polls (as in the 2016 primaries when they were disallowed), people absolutely need to be able to take photos of their ballots, and I would argue that they SHOULD. It's been exposed that electronic voting machines can be tampered with, so what are voters left with for reassurance other than being able to self-report their vote?

Howard Mass

The roasting the pig metaphor is not correct for voting. As I understand it: you burn the barn to get around the law against roasting pigs. So, since the pig is already roasted you eat it to avoid waste. If you take a picture of your ballot, so what, you are not avoiding anything.